Doak v GJ & BP Chard [2015] NSWSC 431

Doak v GJ & BP Chard [2015] NSWSC 431

It is at least arguable on the pleadings and authorities that a partner can be personally liable to another partner in tort for personal injuries even if the events occur in the course of partnership business, and such liability cannot be determined summarily without findings of fact at trial. Circuity of action/double recovery and hardship do not warrant summary dismissal or a stay; the cross claim raises triable issues and should go to trial.

Parties
Plaintiff: Margaret Doak; First Defendant/first Cross Claimant: GJ Chard; Second Defendant/second Cross Claimant: BP Chard; Cross Defendant: William Charles Doak
Jurisdiction
Australia
Judgment Date
17 April 2015
Procedural Posture
Application for Summary Judgment and Stay in Tort/personal Injury Cross Claim / Ruling on Notice of Motion for Summary Dismissal/strike Out/stay
Outcome
Notice of motion for summary dismissal/strike out/stay dismissed; costs to cross claimants.
Legal Topics
Summary Judgment, Contribution Between Tortfeasors, Personal Injury in Partnership Context, Contributory Negligence, Strike Out Applications, Stay of Proceedings
Civil Procedure Torts Partnership Law Summary Judgment Contribution Between Tortfeasors Personal Injury in Partnership Context Contributory Negligence Strike Out Applications +1 more

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Parties

Margaret Doak

Plaintiff

GJ Chard

First Defendant/first Cross Claimant

BP Chard

Second Defendant/second Cross Claimant

William Charles Doak

Cross Defendant

Procedural Posture

Application for Summary Judgment and Stay in Tort/personal Injury Cross Claim / Ruling on Notice of Motion for Summary Dismissal/strike Out/stay

Legal Issues

  1. 1 Whether the cross claim against William Doak (plaintiff’s partner) should be dismissed, struck out, or stayed as disclosing no reasonable cause of action, causing prejudice/embarrassment, or as an abuse of process;
  2. 2 Whether a partner can be liable in tort to another partner for personal injuries;
  3. 3 Whether partnership relationship precludes a cross-claim in respect of alleged contributory negligence;

Ratio Decidendi

It is at least arguable on the pleadings and authorities that a partner can be personally liable to another partner in tort for personal injuries even if the events occur in the course of partnership business, and such liability cannot be determined summarily without findings of fact at trial. Circuity of action/double recovery and hardship do not warrant summary dismissal or a stay; the cross claim raises triable issues and should go to trial.

Court Disposition

Notice of motion for summary dismissal/strike out/stay dismissed; costs to cross claimants.

Orders

  • The notice of motion filed 30 January 2015 is dismissed.
  • The cross defendant is to pay the cross claimants' costs as agreed or assessed on an ordinary basis.